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Barthel v. Department of Agric.

Citation: 29 ELR 21337
No. No. 98-2754, 181 F.3d 934/(8th Cir., 06/18/1999)

The court holds that farmers may dredge and clean a ditch as necessary to farm their land as they did before the Swampbuster provision of the Food Security Act became effective. Before Swampbuster became effective, the farmers dredged and cleaned the ditch and used the drained land as a hay and cow pasture. After the ditch became clogged with debris, the U.S. Department of Agriculture determined that the farmers' proposed depth for the ditch exceeded the previous ditch depth and, thus, violated Swampbuster's provisions and regulations on hydrologic manipulation. The court first holds that according to Swampbuster and its regulations, the farming of a wetland should be maintained at the level that was achieved before Swampbuster became effective. The water regime created by farming the wetland should be maintained, not necessarily the ditch and culvert levels. A ditch level can provide an accurate indication of a previous water regime, but a ditch level that produces a result contrary to the previous water regime cannot stand and conflicts with Swampbuster as a whole.

Counsel for Appellants
Richard E. Gee
Law Offices of Richard E. Gee
916 W. First St., Grand Island NE 68801
(308) 382-1235

Counsel for Appellee
Sally R. Johnson
U.S. Attorney's Office
1620 Dodge St., Ste. 1400, Omaha NE 68102
(402) 221-4774

Before McMillian and Loken, JJ.